Delhi District Court
Mohd. Irfan vs Mohd. Imran on 25 October, 2012
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL SENIOR CIVIL JUDGE,
SAKET COURTS, NEW DELHI
CS NO. 585/11
Mohd. Irfan
S/o Mohd. Illyas
R/o M99, Abul Fazal Enclave,
PartI, Okhla, New Delhi 110025
..... Plaintiff
Vs.
1. Mohd. Imran
S/o Mohd. Illyas
R/o M99, Abul Fazal Enclave,
PartI, Okhla, New Delhi - 110025
2. Mohd. Shokeen
R/o M100, Abul Fazal Enclave,
PartI, Okhla, New Delhi - 110025
3. The SHO, P.S. Jamia Nagar,
Okhla, New Delhi
..... Defendants
SUIT FOR PERMANENT INJUNCTION
DATE OF INSTITUTION : 19.12.2009
DATE OF RESERVING JUDGMENT : 10.10.2012
CS No. 585/11 Page 1 of 16
DATE OF PRONOUNCEMENT : 25.10.2012
JUDGMENT
1. Vide this judgment I shall dispose of present suit filed by the plaintiff for permanent injunction against the defendants.
2. Brief facts as set out in the plaint are that Smt. Firdoss Begum was the owner of a plot measuring 50 sq. yds. and she divided the said plot equally between the plaintiff and defendant no. 1 vide separate registered General Power of Attorney and as such plaintiff is owner of back portion measuring 25 sq. yds forming part of property No. M99, Abul Fazal Enclave, PartI, Okhla, New Delhi - 110025 vide registered General Power of Attorney and registered Will dated 13.08.2002. It is stated that the plaintiff has got electricity connection in his own name in the said premises and paying electricity bill and he also got issued the ration card and the election card from the concerned authorities at the said address. It is further stated that the plaintiff was given the back portion measuring 25 sq. yds. having 3 ½ ft. Gali for egress & ingress of the plaintiff. The plaintiff constructed the said plot having two rooms, kitchen at ground floor and one room, latrine, bathroom on first floor and a safety tank was constructed in the Gali and the hand pump was also installed in the said Gali. It is stated that the CS No. 585/11 Page 2 of 16 defendant no. 1 has given his portion of the said plot measuring 25 sq. yards to defendant no. 2 for construction upon the said plot and accordingly the defendant no. 2 demolished the portion belonging to defendant no. 1 along with the wall of the Gali approaching to the plot/house of the plaintiff. The defendants may also demolish the safety tank constructed on the said gali and remove the hand pump of the plaintiff. The plaintiff requested the defendants no. 1 and 2 not to demolish the wall of the Gali and safety tank constructed in the Gali. The plaintiff called the neighbours who also requested the defendant no. 2 not to demolish the wall and block the way of the plaintiff, but the defendant no. 2 and his associates are adamant and they have started the construction on the said plot. It is stated that the plaintiff came to know that the defendants no. 1 and 2 are having evil eyes on the portion of the plaintiff as they want to purchase the plot of the plaintiff at lower price under pressure by demolishing the wall and safety tank and removal of water pump of the plaintiff. The plaintiff also made a complaint to the defendant no. 3 against the defendants no. 1 and 2 on 14.12.2009, but no action has been taken. Hence, the present suit.
3. The plaintiff has prayed for passing a decree of permanent injunction in his favour and against the defendants thereby restraining CS No. 585/11 Page 3 of 16 the defendants no. 1 and 2 and their associates, representatives and agents from demolishing the wall of Gali and blocking the egress and ingress of the property of the plaintiff bearing No. M99, (back portion), Abul Fazal Enclave, PartI, Okhla, New Delhi - 110025. The plaintiff has also prayed for restraining the defendants no. 1 and 2 from demolishing the safety tank and removing the hand pump of the plaintiff installed in the gali as shown in red colour in the site plan.
4. The defendants no. 1 & 2 contested the suit by filing the written statement contending that plaintiff has no locus standi to file the present suit against the defendants. It is stated that both the plaintiff and defendant no. 1 are the real brothers and defendant no. 2 is the building contractor. The defendant no. 1 wants to build his plot/portion as his house/plot is in danger condition. It is stated that there is a Gali/way common to approach the house of plaintiff and there is a door, which opens in the house of defendant no. 1. It is further stated that there is a safety tank constructed in the Gali and a hand pump. The defendant no. 1 had no interest in demolishing the hand pump and the safety tank which is used by both the plaintiff and defendant no. 1. It is stated that the property was divided between the plaintiff and defendant no. 1 by their mother and 3 ½ feet Gali in which the safety tank and hand pump CS No. 585/11 Page 4 of 16 are installed is a common space and both plaintiff and defendant no. 1 use the said space, water pump and safety tank. It is further stated that there is also a door in the gali which opens in the property of defendant no. 1 and the plaintiff wants to close the gate of defendant no. 1 and wants to grab the Gali unauthorizedly which is common between the plaintiff and defendant no. 1. It is further averred that defendant no. 1 wants to repair/construct his own portion and he has no intention to close the way/gali approaching to the house of the plaintiff. The other contents of the plaint are stated to be wrong and denied and the defendants no. 1 and 2 have prayed for dismissal of the suit.
5. The plaintiff filed replication to the written statement of the defendants reiterating the averments made in the plaint and controverting the averments made in the written statement.
6. It is pertinent here to mention that initially no issues were framed and parties have led their evidence and at the stage of final arguments, it was noticed that issues have not been framed in the present case inadvertently which was duly conceded by both the counsel for the parties. In order to properly adjudicate the controversy between the parties, the issues were framed on 04.08.2012 with the consent of the parties which are as follows: CS No. 585/11 Page 5 of 16
1. Whether Gali from which the plaintiff has ingress and egress and where the hand pump and safety tank is situated is common to plaintiff and defendant no. 1? OPD
2. Whether plaintiff is entitled for permanent injunction as prayed for?
OPP
3. Relief.
7. In order to prove his case, the plaintiff examined himself as PW1 and filed his evidence by way of affidavit which is Ex. PW1/A in which he has deposed as per the averments made in the plaint. He has also placed on record the site plan as Ex. PW1/1, certified copy of GPA dated 13.08.2002 as Ex. PW1/2, electricity bill in his name as Ex. PW1/3, photocopy of ration card as Ex. PW1/4, photocopy of his election card as Ex. PW1/5 and copy of complaint dated 14.12.2002 as Mark A.
8. On the other hand, defendant no. 1 examined himself as DW1 and filed his evidence by way of affidavit as Ex. D1 in which he has deposed more or less as per the averments made in the written statement.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
CS No. 585/11 Page 6 of 16
10. On the basis of material available on record, my issuewise findings are as under:
Issue No. 1 & 2
11. I shall decide the Issue No. 1 and 2 together as both are interlinked. The onus to prove Issue No. 1 was on the defendant no. 1 and onus to prove Issue No. 2 was on the plaintiff. Under these issues, the plaintiff was required to prove that gali in question and the safety tank and hand pump installed in the said gali belongs to him exclusively and defendant no. 1 along with the defendant no. 2 has demolished the wall of the gali thereby blocking the egress and ingress of plaintiff. On the other hand, defendant no. 1 was required to prove that the gali in question is common both to the plaintiff and defendant no. 1.
12. There is no dispute that Smt. Firdoss Begum was the owner of a plot measuring 50 sq. yds. and same was divided by her between her sons i.e the plaintiff and defendant no. 1 equally and the plaintiff became the owner of the back portion measuring 25 sq.yds. part of property bearing No. M99, Abul Fazal Enclave, PartI, Okhla, New Delhi - 25 and the defendant no. 1 became the owner of the remaining 25 sq. yds. of the aforesaid property. Now, as per the plaintiff, he was given the back portion of the aforesaid property measuring 25 sq. yds. CS No. 585/11 Page 7 of 16 having a Gali measuring 3 ½ ft. for his egress and ingress in which a safety tank was constructed and a hand pump was also installed in the said Gali which belongs to him. It is also case of the plaintiff that defendant no. 1 has evil eyes on the property of the plaintiff and he wants to purchase the same at lower price by demolishing the safety tank and removing the hand pump of the plaintiff and the defendant no. 1 has also threatened to demolish the safety tank and to remove the hand pump installed in the Gali.
13. While, the defendant no. 1 has claimed that 3 ½ ft. Gali in which safety tank and hand pump is installed belongs to both the plaintiff and defendant no. 1 and same is in common use and he has never threatened to demolish the safety tank and hand pump installed in the Gali as the gali is common and belongs to both of them.
14. Though, in the plaint, the plaintiff has claimed that the safety tank installed in the Gali belongs to him and same was also got constructed by him, but the plaintiff has contradicted his own stand in the replication when he stated that safety tank is being used by both the plaintiff and defendant no. 1. Not only this, the plaintiff has contradicted his averment in the plaint that he had got constructed the safety tank when the plaintiff stated in the crossexamination that the defendant no. CS No. 585/11 Page 8 of 16 1 had constructed the safety tank.
15. Furthermore, the plaintiff has claimed he was given the back portion measuring 25 sq. yds having 3 ½ ft. Gali for his egress and ingress which belongs exclusively to him and he has constructed a safety tank in the Gali and a hand pump was also installed in the said Gali in which the defendant no. 1 has no right. But in his crossexamination, plaintiff has categorically admitted that the defendant no. 1 constructed the safety tank. He further stated that he has egress and ingress through this gali. He further categorically admitted that the defendant no. 1 also used this gali. The aforesaid categorical admission of the plaintiff in his crossexamination makes it clear that the Gali in question is also used by the defendant no. 1 and the defendant no. 1 had got constructed safety tank in the gali.
16. In the crossexamination, defendant no. 1 also stated that an open gali was left for ingress and egress of the plaintiff. He further admitted that the hand pump was also installed during that period. He further admitted that during that period a safety tank was also constructed.
17. Though, in the plaint, the plaintiff has claimed that the safety tank installed in the gali belongs to him, but the said fact has been CS No. 585/11 Page 9 of 16 contradicted by him in the replication itself when he stated that safety tank is being used by him and defendant no. 1. Further, in the cross examination, the plaintiff has admitted that defendant no. 1 has constructed the safety tank in the Gali. If the safety tank was constructed by the defendant no. 1 as admitted by plaintiff in his crossexamination, then this categorical admission of the plaintiff strengthens the case of the defendant no. 1 that the Gali in which safety tank and hand pump is installed is common and belongs to both the plaintiff and defendant no. 1, moreso when admittedly defendant no. 1 is also using the gali.
18. The plaintiff has further taken a contradictory stand. In the plaint, the plaintiff has stated that hand pump is installed in the Gali, while in the crossexamination he stated that the hand pump is not instated in the gali and the same is installed in the portion of his house. If that is so, then there is no question of demolishing the hand pump which is installed in the portion of the house of the plaintiff because dispute in the present case is as to whether the Gali measuring 3 ½ ft. is exclusively used by the plaintiff for his own use or same is common and is being used by the plaintiff and defendant no. 1.
19. Apart from this, the defendant no. 1 in his evidence has categorically stated that the safety tank was constructed by him by his CS No. 585/11 Page 10 of 16 own funds and the plaintiff was allowed to connect the pipe line of his drainage system to the said safety tank. He further stated that he left the gali width of 3 ½ from his portion and in the said gali there are two doors, one of his room and second of his toilet cum bathroom and the said gali is in common use of plaintiff and himself.
20. The aforesaid averment made by defendant no. 1 in his evidence that he constructed the safety tank from his own funds is admitted by the plaintiff himself in his crossexamination as discussed herein above. The testimony of the defendant no. 1 that plaintiff was allowed to connect the pipe line of his drainage system to the said safety tank and further that in the said gali there are two doors one of the room and second of the toilet and bathroom belonging to defendant no. 1 and said gali is in common for the use of plaintiff and defendant no. 1 has gone unrebutted. There is no crossexamination on these averments made by DW1 in his examinationinchief and law is well settled that if a witness is not crossexamined on a particular point that part of his testimony is deemed to be admitted by the other party. Reliance may be placed upon Satyender Kumar Sharma Vs. Jitender Kudsia 2006 (1) RCR 207.
21. The plaintiff has also taken contradictory stand in respect of CS No. 585/11 Page 11 of 16 the hand pump. At one hand, in the plaint, the plaintiff stated that hand pump is installed in the Gali, but in the replication he has come up with another version that there are two water pumps belonging to him and defendant no. 1. In the replication, it is stated that water pump of the plaintiff and the defendants are separate. The water pump installed in the gali belongs to the plaintiff and the water pump installed in the front of the defendant house belongs to the defendant no. 1. Meaning thereby, there are two water pumps as per the plaintiff, one is installed in the gali and one is installed in front of the house of the defendant no. 1. But, in the crossexamination, the plaintiff again contradicts his stand when he stated that the hand pump is not installed in the gali and the same is installed in the portion of his house and it shows that plaintiff himself is not sure of the location of the hand pump whether same is even located in the gali or not.
22. In view of aforesaid evidence on record, it is apparent that plaintiff has admitted that the Gali in question is also used by the defendant no. 1 and safety tank installed in the Gali was constructed by the defendant no. 1. The plaintiff has not been able to prove that hand pump is installed in the Gali and same is being demolished by the defendants no. 1 & 2. The plaintiff has not been able to prove that CS No. 585/11 Page 12 of 16 defendants no. 1 and 2 have demolished the wall of the Gali as claimed by him and no evidence has been led by the plaintiff to this effect. Though, in his crossexamination, plaintiff stated that the photographs of the demolished wall was taken, but he has not placed on record the same. He has also admitted that he has also not brought the photographs with him. Though, the plaintiff has denied the suggestion that no wall, hand pump and safety tank were demolished, but he has not been able to prove the same and despite claiming that he is in possession of the photographs of the demolished wall, he has not placed on record the same to prove his claim that wall of the gali has been demolished by the defendant. Therefore, an adverse inference is liable to be drawn against the plaintiff.
23. In view of aforesaid discussions, since the plaintiff has admitted in his crossexamination that the defendant no. 1 is also using the gali and further that safety tank installed in the Gali was constructed by the defendant no. 1, thereby supporting the case of defendant no. 1 that the Gali in which hand pump and safety tanks are installed is common to plaintiff and defendant no. 1. Hence, issue no. 1 is decided in favour of defendant no. 1 and against the plaintiff.
24. Further, since the plaintiff has not been able to prove that CS No. 585/11 Page 13 of 16 the Gali in which safety tank and hand pump is installed belongs to him exclusively or defendants have demolished the wall of the Gali, safety tank and water pump installed in the Gali, the plaintiff cannot be said to be entitled for injunction as prayed for. Hence, Issue No. 2 is decided in favour of the defendants and against the plaintiff.
25. Along with the suit an application U/o 39 Rule 2A CPC filed by the plaintiff is also pending adjudication before this Court. By this judgment, the application is also being disposed of.
26. In the application, it is stated that vide order dated 19.02.2010 the court had restrained the defendants from demolishing the safety tank, hand pump and also restrained not to create any hindrance of ingress sand egress of the plaintiff towards his property bearing No. M99, Back Portion, Abul Fazal Enclave, PartI, Okhla, New Delhi. However on 11.07.2011, the defendant no. 1 and 2 started the construction with the help of defendant no. 3 and also started demolition of safety tank and to remove the hand pump installed at the gali approaching to the back portion of the plaintiff. It is stated that despite having full knowledge of passing of the inunction order by the court, the defendants have demolished the wall of the gali, safety tank and hand pump installed in the gali and they have breached the order dated CS No. 585/11 Page 14 of 16 19.02.2010 and hence the defendants are liable to be punished as per provisions of Contempt of Court Act.
27. The defendant no. 1 has filed reply to the application stating that safety tank was got constructed by him from his own costs/expenses which is situated in the gali in question and the plaintiff was allowed by the defendant no. 1 to use the same safety tank by connecting the pipe of the sewer of the plaintiff. It is further stated that the hand pump has not been removed by the defendant no. 1 as alleged or the defendant no. 1 has not violated the order dated 19.10.2010 passed by the court. The defendant no. 1 has prayed for dismissal of the application.
28. The basis of this application of the plaintiff is that despite granting the injunction in favour of the plaintiff and against the defendants, the defendant no. 1 has breached the order dated 19.10.2010 by which they were restrained from demolishing the wall of the gali, safety tank and water pump installed in the gali and they have started construction by demolishing the safety tank and by removing the hand pump installed in the Gali in question.
29. But, as discussed herein above, from the evidence of the parties, it has come on record that safety tank was got constructed by the defendant no. 1. No evidence has been led by the plaintiff to support his CS No. 585/11 Page 15 of 16 case that same has been demolished by the defendant no. 1. The plaintiff has not placed on record any clinching evidence to substantiate his claim in the application that the defendant has demolished the safety tank installed in the Gali. Even the plaintiff has not been able to prove that safety tank belongs to him exclusively. From the evidence of the parties, it has come on record that safety tank was got constructed by the defendant no. 1 and plaintiff was allowed to use the said safety tank by the defendant no. 1 by connecting the pipe line of his sewer. Plaintiff has even not placed on record the photographs to show that the wall, safety tank and hand pump has been demolished by the defendants. Hence, the plaintiff has not been able to prove that the defendants have violated the order dated 19.10.2010. Therefore, there is no merit in the application and same is hereby dismissed.
RELIEF
31. As a sequel to my findings and observations under issue no.
1 and 2, the suit filed by the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in Open Court (Balwant Rai Bansal)
on 25th October, 2012 Additional Senior Civil Judge (South)
Saket Courts, New Delhi
CS No. 585/11 Page 16 of 16
CS No. 585/11
25.10.2012
Present: Plaintiff in person.
Defendant no. 1 in person.
Vide my separate judgment of even date dictated and announced in the open court, the suit filed by the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Balwant Rai Bansal) JSCC/ASCJ(South) Saket Courts, New Delhi 25.10.2012 CS No. 585/11 Page 17 of 16